5.  The applicant was born in 1950 and lives in Istanbul. He is the father of Hakan Kasa, who was killed by a number of police officers on 13 August 1993.
6.  The facts of the case as presented by the applicant and the Government are based on a number of documents drawn up in the course of the domestic investigation. The following information is taken from the parties’ submissions as well as from the documents submitted by them.
7.  On 12 July 1993 police officer Mehmet Bulut was shot in the shoulder in a marketplace in Istanbul. The injury was not fatal. The perpetrators managed to escape and the police officer’s pistol went missing during the incident. The police began a search to find the perpetrators and to recover the pistol.
8.  At around midday on 13 August 1993 the police received an anonymous telephone call from a man who stated that there were a number of armed persons in a café on the 11th floor of a shopping mall in the Beyoğlu district of Istanbul who were behaving suspiciously.
9.  According to an incident report drawn up and signed by twenty-two members of the anti-terrorist police on 13 August 1993, a police team carried out reconnaissance in the café and determined that the information given by the anonymous caller had been correct. Armed police officers then secured the area in and around the shopping mall and a special police team, wearing bulletproof vests, entered the building.
10.  When the members of the special police team were on the 11th floor and were walking towards the café, a man and a woman outside the café drew their pistols and opened fire at them. The two persons failed to cease firing and surrender despite warnings from the police officers. As a result, the police officers returned fire and an armed clash ensued which resulted in the deaths of the two persons.
11.  While the police officers were dealing with the two persons, firing began from inside the café. The officers asked the people inside the café to stop and surrender. Nevertheless, when they failed to comply with that request, the officers returned fire. When the firing finally ceased from inside the café, the officers entered the café and saw three men lying on the floor behind a fridge. The members of the special police team then informed their superiors and the prosecutor. A search team was sent to the café.
12.  A stick of dynamite was found during the search subsequently carried out in the café and was defused by bomb-disposal teams. It was destroyed the following day. It was also established that the five persons were all dead. Each of the five deceased had a pistol next to their right hands. The identities of the five deceased persons were established from the identity cards found in their pockets.
13.  The woman killed outside the café was identified as 22-year-old Selma Çıtlak. The man killed next to her was identified as 21-year-old Mehmet Salgın. The three men inside were 16-year-old Sabri Atılmış, 32‑year-old Nebi Akyürek and the applicant’s 18-year-old son Hakan Kasa. A large number of bullet cases and deformed bullets were also found in and around the café. These were secured for the necessary examinations to be carried out.
14.  The following information appears from the report prepared on the same day by a prosecutor who had gone to the scene after having been informed by the police at 1.30 p.m. The prosecutor, who was accompanied by a doctor from the Forensic Medicine Institute, arrived at the scene at 2 p.m.
15.  Following the arrival of the prosecutor and the doctor, the bodies were moved to a suitable room within the shopping mall for the necessary examinations to be carried out. There were eight bullet wounds on Selma Çıtlak’s body. Mehmet Salgın’s body had ten bullet wounds. The pistol found next to his body bore serial number 302-83715. Nebi Akyürek’s body had eighteen bullet wounds, whereas the bodies of Sabri Atılmış and the applicant’s son had nine and seven bullet wounds respectively.
16.  Following the preliminary examinations, the bodies were taken to the Forensic Medicine Institute for post-mortem examinations to be carried out. The prosecutor noted that by this time the identity cards of the deceased persons, with the exception of Mehmet Salgın and Sabri Atılmış, were missing. He was thus unable to identify the bodies of the applicant’s son and the remaining two deceased.
17.  According to a report prepared by the Police Laboratory on 16 August 1993 concerning the examination of “the pistols found after the police operation involving members of the THKP-C/Dev Sol[1]”, the pistol found outside the café next to the body of Mehmet Salgın, with serial number 302-83715, was the missing pistol belonging to police officer Bulut who had been shot and injured on 12 July 1993 (see paragraph 7 above). It was established that the pistol found next to the body of Sabri Atılmış had also been used in the shooting incident during which officer Bulut was injured. It also appears from this report that the special police team members had fired 332 rounds, and 35 rounds had been fired from the five pistols found next to the deceased.
18.  On 19 August 1993 the applicant’s elder son and members of the Contemporary Lawyers’ Association submitted a petition to the prosecutor’s office in Istanbul. They alleged that the killings had been arbitrary and that the police officers had been covering up their tracks by destroying the evidence. They also alleged that the pistols found next to the bodies and the dynamite had been “part of a set up”.
19.  On 20 August police officer Bulut identified the deceased Mehmet Salgın and Nebi Akyürek as the persons who had shot and injured him on 12 July 1993.
20.  On 9 September 1993 the wife and the father of Mr Nebi Akyürek also submitted a petition to the prosecutor’s office and complained that the killings had been arbitrary. Nebi had not been a member of any illegal organisation; had he not been killed, it would have been established that he was innocent. They challenged the prosecutor to divulge the evidence, if any such evidence existed, to show that Nebi had been a member of the illegal organisation as alleged by the police. They also drew the prosecutor’s attention to the fact that one of the deceased had only been 16 years old. He was also their relative and had been working in their family business.
21.  They denied that Nebi or the other deceased had been armed and maintained that the pistols found next to the bodies had been planted there after the killings. Nebi was not left-handed but the pistol had been found next to his left hand. Furthermore, the pistols did not bear the finger prints of the deceased. Moreover, there were no bullet holes in the walls of the café to indicate that the three persons inside the café had opened fire. The broken windows of the café and the surrounding shops had been replaced by the police officers immediately after the operation, making it impossible to determine the direction from which the shooting had been coming and what types of weapons had been used.
22.  None of the police officers who had taken part in the operation had any injuries. This, they maintained, showed that the deceased had been unarmed and killed at close range. Finally, they argued that alternative methods could have been used to arrest the five persons alive. They had been in a café on the 11th floor of a shopping mall and, as such, it would have been impossible for them to escape. They asked the prosecutor to carry out autopsies on the bodies with a view to establishing the distance from which they had been shot. They also asked the fingers of the deceased to be examined to establish whether they had indeed handled the weapons found next to their bodies and whether they had fired them as alleged.
23.  According to a report prepared by the chief of the anti-terrorist police in Istanbul on 13 September 1993, the five deceased had been members of the THKP-C/Dev-Sol. There were police records concerning Nebi Akyürek and Mehmet Salgın’s participation in unlawful demonstrations but there were no records in the police files in relation to the remaining three, including the applicant’s son.
24.  On 16, 18, 21 and 25 September 1993 five reports were drawn up in relation to the post-mortem examinations which had apparently been carried out on 13 August 1993 on the bodies of the five deceased. The reports detail the various injuries caused by the bullets in their bodies and heads. As the finger tips of the deceased had been covered with ink by the police to obtain their fingerprints, it had not been possible to test them for gunpowder residues.
25.  On 3 December 1993 the prosecutor began questioning the police officers who had taken part in the operation on 13 August 1993. One of the police officers stated that police officers Ayhan Çarkın, Ayhan Özkan and Ömer Kaplan had fired first after they had come under fire from the five persons.
26.  On 27 April 1994 the explosives expert who had defused the dynamite found in the café was questioned by the prosecutor. The expert stated that he had found the bombs underneath the bodies inside the café.
27.  On 29 September 1994 police officers Ayhan Çarkın, Ayhan Özkan and Ömer Kaplan, who had taken part in the operation, were questioned by a prosecutor for the first time. All three maintained that they had acted in the execution of their duties.
28.  On 14 October 1994 the prosecutor filed an indictment with the Istanbul Assize Court, charging nine police officers with the offence of causing death in the execution of their duties.
29.  On 31 October 1994 the criminal proceedings against the police officers began before the Istanbul Assize Court (hereinafter “the trial court”). The applicant and the relatives of the other four deceased joined the proceedings as interveners. During the trial the applicant and his wife informed the trial court that their son Hakan had not been involved in any criminal activity, and alleged that he had been killed unlawfully.
30.  The Higher Disciplinary Board of the police observed on 20 July 1995 that the time-limit for initiating disciplinary proceedings under the statute of limitations had expired, and decided not to bring any disciplinary proceedings against the police officers.
31.  A number of hearings had to be postponed on account of the failure of some of the defendants and prosecution witnesses to attend the hearings. When one particular defendant, Mr Ayhan Çarkın, failed to give evidence in court, he was questioned elsewhere and his statement was included in the case file. The requests made by the interveners to question Mr Çarkın before the trial court was rejected.
32.  During one of the hearings, one of the defendants stated that they had come under fire and had responded by firing back. When he was asked by one of the lawyers representing the families whether the police always had to return fire and kill persons who opened fire on them, the defendant replied that in this particular operation they had not opened fire with an intention to kill. The witnesses and the defendants confirmed that during the operation they had used MP-5 automatic submachine guns.
33.  The husband of the deceased Sema Çıtlak informed the trial court that his wife had been working in the café as a cashier. She had had no involvement in any illegal activity. Following the killing of his wife the police had told him that his house would be searched, but this had never been done.
34.  During the hearing held on 15 January 1998 the lawyers for the families repeated their requests for the trial court to carry out an on-site inspection in the shopping mall with a view to ascertaining whether or not it would have been possible for the five persons to escape. The trial court, considering that “the [answer] to this question was obvious because the five persons [had been] killed on the 11th floor of the shopping mall”, rejected the request.
35.  During the next hearing a civilian eyewitness to the events testified before the trial court and stated that during the operation he had been shot accidentally and injured. He had not seen who had shot him. He did not remember whether he had heard the police shouting “surrender”.
36.  One of the prosecution witnesses, police officer Adalet Aküzüm, testified before the trial court and stated that he had also participated in the operation and had opened fire. The lawyers for the families then requested the trial court to prosecute this particular witness as he had clearly been more than just a witness to the events. This request was not accepted.
37.  During the trial the lawyers for the families alleged that the police officers had destroyed the evidence. In particular, the police officers had taken the deceased persons’ clothes and had immersed them in water, making it impossible to forensically determine whether the deceased persons had opened fire and whether their clothes had gunpowder residues.
38.  On 14 May 1998 the lawyers representing the families asked for the judges of the trial court to be withdrawn from hearing the case. In support of their request the lawyers pointed out that even the most basic steps had not been taken in the proceedings despite the fact that the trial had been going on for three and a half years. In this connection they submitted that their requests for a ballistic comparison of the bullets found in the victims’ bodies with the weapons used by the police officers had been rejected. Similarly, their requests for the court to determine the distance between the police officers and the deceased and to have forensic examinations of the clothing the deceased had been wearing carried out had also been rejected by the trial court.
39.  The lawyers also pointed to the testimony given by officer Aküzüm (see paragraph 36 above) in his capacity as a witness, confirming that he had also opened fire on the deceased persons. The lawyers stated that their request to have Mr Aküzüm prosecuted had been rejected. They alleged that their request for the defendant Ayhan Çarkın to be questioned and for an inspection of the café to be carried out with a view to ascertaining whether or not it would have been possible to apprehend the five deceased persons alive had also been rejected without any justification. In this connection they also drew the trial court’s attention to a number of highly publicised criminal proceedings pending against two of the defendants, namely Ayhan Çarkın and Selim Kostik, on account of their alleged involvement in the killings of a number of other persons and their alleged involvement in ransoms and protection rackets.
40.  The request for the withdrawal of the judges was rejected on 22 May 1998 because the points raised by the lawyers were not of a nature to call into question the independence of the judges of the trial court.
41.  During the hearing held on 3 November 1998 the applicant’s lawyers informed the trial court that they had applied to the European Court of Human Rights as they believed that the criminal proceedings were not being conducted in an independent fashion. During the same hearing one of the three judges on the bench withdrew from sitting on the case on account of the distrust displayed by the families towards him and his two colleagues.
42.  On 8 July 1999 the lawyers for the applicant submitted their written arguments to the trial court. They pointed out that the first time the prosecutor had questioned the police officers had been some four months after the killings. It had taken the prosecutor thirteen months to question all the defendants. No thought had been given to identifying the eye-witnesses to the incident. Furthermore, the pistols found next to the bodies had not been examined for finger prints. They believed that the failure to take the above-mentioned steps had rendered the investigation ineffective, in violation of Articles 2 and 6 of the European Convention on Human Rights. This, they alleged, had encouraged the police to carry out similar summary executions in future.
43.  On 21 December 1999 the trial court found five of the nine police officers guilty of the offence of intentional homicide. The trial court rejected the prosecutor’s request to acquit these five defendants who, in the opinion of the prosecutor, had killed the deceased in the execution of their duties and had remained within the permissible limits of self-defence.
44.  The remaining four defendants were acquitted because they had not taken part in the armed operation, but had been involved in the securing of the area in and around the shopping mall. The trial court left it to the discretion of the prosecutor to bring criminal proceedings against police officer Adalet Aküzüm, who had participated in the operation with the above-mentioned five police officers and who gave evidence as a witness during the trial (see paragraph 36 above).
45.  The trial court observed that thirty-five rounds had been fired from the five pistols found next to the bodies. The five accused police officers and officer Aküzüm, on the other hand, had fired 322 bullets. According to the trial court, the deceased had been greatly outnumbered by the police officers, some of whom had been highly trained in anti-terrorist operations. The area around the shopping mall had been secured by the police officers and it would have been impossible for the five deceased persons to escape from the building. It could have been possible, therefore, to apprehend the five persons alive. Furthermore, although the five accused police officers had acted in self-defence, they had used disproportionate force, in violation of the applicable legislation.
46.  The trial court held that the right to life was the most fundamental right of all the rights and freedoms, and was protected in Article 2 of the European Convention on Human Rights. Police officers were representatives of the State and in their dealings with the public they were expected to comply with, inter alia, the international conventions which formed part of the domestic law. Nevertheless, the killing of the five persons had not been absolutely necessary within the meaning of Article 2 § 2 of the Convention as the police officers had exceeded what was absolutely necessary to eliminate the danger. Although under domestic law they were entitled to open non-lethal fire at parts of the individuals’ bodies, and they could have thus fired once or twice at each person, they had in fact fired between seven and eighteen rounds at each victim. In this connection the trial court pointed to the fact that the officers had been wearing bulletproof vests.
47.  The trial court sentenced the five police officers to death. Nevertheless, the death penalty was commuted to eight years’ imprisonment in accordance with Article 50 of the Criminal Code. The prison sentences were then halved pursuant to Article 463 of the Criminal Code which concerned joint enterprises in the commission of the offence of homicide. The sentences were then increased to four years and eight months in accordance with Article 281 of the Criminal Code, as the trial court considered that the defendants had abused their “means and powers”. Finally, the trial court used its discretion under 59 of the Criminal Code and reduced the prison sentences to three years and twenty days. The trial court further decided to ban the five defendants from carrying out their duties as police officers for a period of three months.
48.  The convicted police officers, the prosecutor and the applicant appealed against the judgment.
49.  The prosecutor argued that the police officers had acted in the execution of their duties and, in accordance with Article 49 of the Criminal Code, they should not have been punished.
50.  In their appeal petitions the police officers maintained that the deceased had been members of an illegal organisation and that they had remained within the permissible limits of self-defence when they shot them.
51.  The applicant, for his part, argued that the judgment had not been in compliance with the applicable law and procedure.
52.  On 23 May 2001 the Court of Cassation quashed the judgment convicting the five police officers, and considered that they had acted in self-defence, on the orders of a competent authority and out of immediate necessity.
53.  Criminal proceedings recommenced before the trial court. During the re-trial the applicant asked the trial court not to depart from its previous judgment.
54.  On 22 October 2001 the trial court recalled its previous judgment but held, in accordance with the Court of Cassation decision, that “the defendants had committed the offence out of legitimate necessity” and, as such, it was not possible to punish them.
55.  The applicant and the relatives of the other deceased persons appealed against the judgment and argued that it was difficult to reconcile the judgment of 22 October 2001 with the judgment of 21 December 1999 in that, in its later judgment, the trial court had not explained why it was abandoning its previous conclusion. Given that the elements on which the Court of Cassation decision was based had already been examined and answered by the trial court in its first judgment, and also having regard to the fact that the circumstances surrounding the killings had not changed, it was impossible to comprehend how the trial court could decide to acquit the defendants.
56.  On 20 May 2002 the Court of Cassation upheld the judgment of 22 October 2001.